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December 14, 2008

You make the AG call: should feds seek death for courthouse killer Brian Nichols?

I suppose I should not be surprised to see this news reportout of Atlanta, which indicates that the state DA unable to get the death penalty for courthouse killer Brian Nichols now wants the feds to give it go:

Fulton County District Attorney Paul Howard said Saturday that courthouse killer Brian Nichols may get the death penalty yet — from a federal court jury. Howard, whose prosecution sought and failed to get death for Nichols, said he would talk this week about possible federal charges against Nichols for killing off-duty U.S. Customs agent David Wilhelm.

The agent was working alone at his new home in Buckhead when Nichols confronted him the night of his March 11, 2005 escape from the Fulton County Courthouse. Nichols was sentenced Saturday to multiple life prison sentences for the entire case, including four sentences without parole for the four killings.

Howard said at a post-sentencing news conference that he and U.S. Attorney David Nahmias will talk about a renewed death-penalty effort later in the week. Howard also said he will push for a change in Georgia law that mandates a unanimous decision by juries tackling death penalty cases.

Nichols’ jury hung in a persistent 9-3 vote, with those wanting death in the majority. Without unanimity, however, Judge James Bodiford was forced to deliver sentences of life in prison.

Were I the Attorney General with authority to review whatever recommendation was made by the local US Attorney, I would first request an accounting of how much money the state of Georgia spent in its (now failed) effort to get Brian Nichols on to death row. I would then ask for an estimate of how much it would likely cost to conduct a federal capital trial in this case. I genuinely believe any and every death penalty decision should be informed by as much tangible cost/benefit information as possible.

I suspect others may believe that cost issues should be ignored (or be at least a very minor consideration) in a high-profile case like this one. And I hope these folks will use the comments to indicate what factors they think should come first in the AG's consideration of this case.

Comments

Ironically, there is precedent in Georgia for one sovereign to seek the death penalty in a second case, after the first sovereign has tried a notorious murder defendant, obtained a guilty verdict, but the jury hung in favor of the death penalty, so only a life sentence was imposed. In the early 1990s, former Atlanta attorney Fred Tokars, who was helping his cocaine dealing clients launder money, hired an 18 year old crack head thru an intermediary to kill his wife, Sara, in what was supposed to look like she had walked in on the burglary of her home. Sara wanted a divorce and custody of the couple's 2 young sons. She had copied incriminating documents from Fred's basement safe and threatened to turn them over to law enforcement authorities unless Fred gave her a divorce and custody of the 2 sons. Fred made the mistake of telling his "clients" that Sara had copied the incriminating papers and was threatening them. The "clients" told Fred to silence Sara, or they would kill him! The young "hit man" didn't shoot Sara in the house, as planned, but rather, forced her to drive, with the 2 boys in the car. When she refused to turn down a wooded, dead end street, he shot her from the back seat with a sawed off shotgun, splattering both sons with their mother's blood and brains (a gruesome crime!). The hit man ran away, and both sons survived, but the hit man bragged about his crime in "the hood", and was arresed withiin 24 hours, eventually leading to Fred Tokars. The trigger man/crack head received a life sentence, and the intermeediary cut a deall to testify against Tokars in exchange for a sentence of only about 15 years. In Mr.Tokar's case, he was first indicted by the Feds for murder in aid of racketeering over his wife's murder. Although Tokars was convicted, he received only a life sentence. The second, death penalty trial was held at great expense in the Superior Court of Cobb County, Georgia (an Atlanta suburb). Mr. Tokars was convicted of murder, but the jury hung 11 to 1 in favor of the death penalty, so he received only a second life sentence. The single holdout (the jury foreman) later admitted that he had lied during voir dire, and believes that the death penalty should never be imposed. Mr. Tokars is now serving his Federal life sentence in a Federal penitentiary in Colorado.

Posted by: Jim Gormley | Dec 14, 2008 10:42:08 AM

There is probably no reason to seek the death penalty here. The guy is likely going to jail for the rest of his life, and it's not like his crime is of the enormity of Terry Nichols' crime.

As for the costs, well, whose fault is that? Seems to me that we need to look into why penalty phase determinations for killers cost so much.

News reports based upon comments made by the pro-death penalty people on the jury who had/have a vested interest in presenting their decision as such. That is pure evil. If a neutral party determines that they lied, then what they did was wrong. But I have heard no admission by the three themselves that they lied.

It is entirely possible to be pro-death penalty and believe it should not be applied in this case. In fact, I am one of those people (based upon what I have read in the news, mind you).

The real issue here is that a great deal of moral, financial, and political capital was bet by the prosecutors that they would get the death sentence, and now they upset that they lost. Since they are already "all in", they have nothing to lose by turning to the feds, in addition to pointing the fingers at "rogue" juries or a "bad law". How about they blame their own dumbass selves. But personal responsibility is an idea alien to anyone in the South.

The real people here who are out of line are the DA and his "kill kill kill" crowd. And I think that being a pro-death penalty person.

Posted by: Daniel | Dec 14, 2008 12:05:05 PM

There is no doubt that Brian Nichols committed heinous crimes, including 4 homicides. What makes his crimes particularly deserving of the death penalty is that he shot a Judge on the bench inside a courtroom, and the Judge's court reporter. There has been no crime in America since the bombing of the Oklahoma City Federal Building (including 9/11/2001) that symbolically struck so directly at the justice system. Society's response in such cases must be unequivocal and severe; only the death penalty satisfies those criteria. This is why Fulton County D.A. Paul Howard has pressed so hard in the case, not because of his ego or political agenda. Notably, when Brian Nichols was arraigned, D.A. Paul Howard personally walked across the Court Room and handed Mr. Nichols the "Notice of Intent to Seek the Death Penalty." Symbolism is very important in this case, which is why I believe that the Feds will again prosecute Brian Nichols. It's not "double jeopardy", but, rather, "dual sovereignty"!

Posted by: jim Gormley | Dec 14, 2008 2:19:54 PM

Jim Gormley wrote: "What makes his crimes particularly deserving of the death penalty is that he shot a Judge on the bench inside a courtroom, and the Judge's court reporter."

How does that make one deserving of the death penalty? Are judges and their court reporters more important than other people?

Jim Gormley wrote: "Society's response in such cases must be unequivocal and severe; only the death penalty satisfies those criteria."

No, it doesn't. How about endless torture? A dose of waterboarding every day until death? Seems pretty severe to me.

What is equivocal about a life prison sentence? What in a life sentence lacks severity? Have you ever been to prison? Can you imagine what it feels like to be confined and to lose your liberty for the rest of your life? Hell, just imagine never being able to leave your own home for the rest of your life, even if you had cable television, access to the internet, and could entertain guests. That, even, would be torture. Restrictions on liberty are uniquely severe punishments.

Ultimately, you are just picking an arbitrary punishment. You enjoy death and killing, so you settle on the death penalty, but there's no real rationale for it.

Comparing the crime to the Oklahoma bombing seems a real stretch. In that situation, you had two individuals with a very clear political/social agenda and the bombing was a means to carry out that agenda. In the case at hand, I have read nothing about the murderer having any type of political or social agenda. Just because a crime happened in a court building or against a judge doesn't make it a crime against the "justice system". The evidence in the Oklahoma case showed quite conclusively that the perps both were aware and intended their crime to have symbolic value. I have yet to read a newspaper article that states that Nichols had the same motive.

Posted by: Daniel | Dec 14, 2008 3:34:00 PM

11:02, the guy escaped by shooting his way out of a courtroom. Once someone shows himself to be willing and able to escape by killing his captors, the fact that the sentence will require him to serve life in prison is considerably less reassuring.

Posted by: | Dec 14, 2008 6:34:30 PM

It seems pretty clear to me that to shoot and kill a judge while on the bench is an extreme affront to our system of laws.
It also seems clear that there are sufficient aggravating factors here to tip the balance toward the death penalty.

Posted by: | Dec 14, 2008 7:07:25 PM

His confession indicates a politically-symbolic motive as a basis for his rampage. In fact, he sounds eerily like Timothy McVeigh (although McVeigh dismissed some victims as collateral damage, while Brian Nichols did not).

Brian Nichols was at war with the United States government and “all of the persons killed were employees of the United States government, there was no collateral damage” he claimed in a videotape confession played Tuesday detailing how he shot and killed four people during a 26-hour crime spree.

On Wednesday, jurors watched another segment of the taped confession, and Det. Vincent Velazquez continued to testify about it.
Nichols, on trial for the March 11, 2005 killings of a judge, a court reporter, a deputy, and a federal agent, appears calm in the video as he sits at a table at Atlanta police headquarters on the afternoon of March 12, and talks for three hours with Atlanta Police Department homicide detective Vincent Velazquez, while sipping from a canned soft drink.

“Let me just start by saying that, you know, I give my condolences to all the families of those who were killed, um, in combat,” he tells Velazquez in a high-tenored, almost meek voice.

Nichols was then on trial on rape charges when he is accused of overpowering a deputy in a holding cell, then shooting and killing the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Ann Brandau in Barnes’ courtroom, where Nichols was to appear later that morning.

Nichols said he was provoked to start the war by a “multitude of different things,” including the conditions in the Fulton County jail, and the prison system of Georgia where “prisoners are required to work for free… you really have no choice other than to work… it parallels significantly the treatment of slaves.”

He said: “I felt as though I was a slave with them. As a soldier, I don’t feel like I committed any war crimes. There was no collateral damage.”
-------------------------------

http://www.11alive.com/news/local/story.aspx?storyid=122076&catid=3

"Nichols told a story of being enslaved, and deciding on March 11, 2005 to declare war on the US government.

Certain words stood out in his confession. He can be heard using military lingo, calling victims targets. He didn't say he killed them; he said several times he spared them. Is this the confession of a sane man or a crazy man? The jury will have to decide.

"I consider myself to be a slave rebelling against his master," Nichols said.

Nichols described himself as a "captured prisoner of war," and said he feels justified by his actions.

"As a soldier, I don't feel I committed any war crimes," Nichols said.

He said he made a decision to rebel during his second rape trial when it looked like he was going to be convicted. He said he felt like he was being sold into slavery, so he declared war.

"I saw Judge Barnes as a master," he said.

"And when you say master are you talking about --" said the investigator questioning him.

"I'm referring to the slave master," Nichols replied."

Posted by: Narcolepsy | Dec 14, 2008 8:31:24 PM

His confession indicates a politically-symbolic motive as a basis for his rampage. In fact, he sounds eerily like Timothy McVeigh (although McVeigh dismissed some victims as collateral damage, while Brian Nichols did not).

Brian Nichols was at war with the United States government and “all of the persons killed were employees of the United States government, there was no collateral damage” he claimed in a videotape confession played Tuesday detailing how he shot and killed four people during a 26-hour crime spree.

On Wednesday, jurors watched another segment of the taped confession, and Det. Vincent Velazquez continued to testify about it.
Nichols, on trial for the March 11, 2005 killings of a judge, a court reporter, a deputy, and a federal agent, appears calm in the video as he sits at a table at Atlanta police headquarters on the afternoon of March 12, and talks for three hours with Atlanta Police Department homicide detective Vincent Velazquez, while sipping from a canned soft drink.

“Let me just start by saying that, you know, I give my condolences to all the families of those who were killed, um, in combat,” he tells Velazquez in a high-tenored, almost meek voice.

Nichols was then on trial on rape charges when he is accused of overpowering a deputy in a holding cell, then shooting and killing the Superior Court judge in his case, Rowland Barnes, and court reporter Julie Ann Brandau in Barnes’ courtroom, where Nichols was to appear later that morning.

Nichols said he was provoked to start the war by a “multitude of different things,” including the conditions in the Fulton County jail, and the prison system of Georgia where “prisoners are required to work for free… you really have no choice other than to work… it parallels significantly the treatment of slaves.”

He said: “I felt as though I was a slave with them. As a soldier, I don’t feel like I committed any war crimes. There was no collateral damage.”
-------------------------------

http://www.11alive.com/news/local/story.aspx?storyid=122076&catid=3

"Nichols told a story of being enslaved, and deciding on March 11, 2005 to declare war on the US government.

Certain words stood out in his confession. He can be heard using military lingo, calling victims targets. He didn't say he killed them; he said several times he spared them. Is this the confession of a sane man or a crazy man? The jury will have to decide.

"I consider myself to be a slave rebelling against his master," Nichols said.

Nichols described himself as a "captured prisoner of war," and said he feels justified by his actions.

"As a soldier, I don't feel I committed any war crimes," Nichols said.

He said he made a decision to rebel during his second rape trial when it looked like he was going to be convicted. He said he felt like he was being sold into slavery, so he declared war.

"I saw Judge Barnes as a master," he said.

"And when you say master are you talking about --" said the investigator questioning him.

"I'm referring to the slave master," Nichols replied."

Posted by: Narcolepsy | Dec 14, 2008 8:32:34 PM

Narcolepsy. Thanks for that information. I would like to hear the defenses take on that confession. This article makes his actions sound more premeditated than had been my prior understanding but I really cannot draw any firm conclusion because the article itself is rather one-sided. That's not surprising becuase the newspaper's job is to sell ads, not justice. But if it is a valid representation of his views, I would need to revise my opinion on a death sentence.

Posted by: Daniel | Dec 14, 2008 9:03:19 PM

7:07:

Great argument. The jury rejected it. I'm not sure why we federal tax payers should try the argument again, esp. considering it was a STATE judge who was killed.

Posted by: | Dec 14, 2008 10:20:30 PM

Where is "Federalist"? He's usually such a vocal defender of states' rights. Funny that in the rare case where federal "interference" might advance rather than reign in the death penalty, he falls silent. Makes one wonder whether his defense of localism is principled or every bit as outcome- oriented as the abolitionists he so vociferously criticizes.

Posted by: dm | Dec 14, 2008 10:40:58 PM

In reply to "DK" above, let me say that I served a Federal prison sentence between 2000 and September 2007, so I am quite familiar with what it means to lose one's liberty. See, United States v. Bollin, Gormley & Tietjen, 264 F.3d 391 (4th Cir.2001). I am also a graduate of Vanderbilt University (B.A.1984) and the University of Virginia School of Law (J.D.1987). I practiced law in Atlanta for 13 years before going to prison in 2000. I have tried cases in the same Court House (the Fulton County Justice and Administration Center), on the same floor where Judge Barnes was shot. The Bureau of Prisons does not like educated inmates, particularly former lawyers. I served 2 years of my sentence at U.S.P.-1, Coleman, Forida, a maximum security penitentiary, where two-thirds of the inmates have life sentences, and 85% have 30 years to life. Such prisons are extremely violent, and I saw many people stabbed or severely beaten at Coleman Penitentiary. A few died, and the life flight helecopter took people to the hospital a few times a month. I am lucky I lived thru the experience.
Brian Nichols did not escape from the court room. Rather, prior to the beginning of his rape trial (the first trial had resulted in a hung jury) that day, he overpowered a female deputy (the only person guarding him)in a holding cell area down the hall from the courtroom. He then took the deputy's keys, retrieved her gun from a locked box and, deliberately and with premeditation, entered behind Judge Barnes (the door from the hallway to the bench) and shot him in the back of the head; he then shot the Court Reporter and left the Court House, running down a stairwell to the street. Fulton County Deputy Hoyt Teasley heard the gunshots and chased Nichols down the stairs. When Teasley exited the stairwell thru a door to the street, Nichols shot and killed him.
Later, he shot and killed an off duty, non-uniformed I.C.E. agent in Buckhead, apparantly to obtain his vehicle, which he drove to Gwinnett County, a suburb northeast of Atlanta. Nichols was probably not aware that the man was an off duty law enforcement agent when he killed him. On the day these events were reported on C.N.N., I was watching from Unit C-4 of the Federal penitentiary in Inez, Kentucky (U.S.P. - Big Sandy), where I was an inmate for 4 months before being transferred to Florida. Respectfully, DK, if Nichols had merely wanted to escape, he did not have to enter the court room and gratuitously shoot Judge Banres and his court reporter (an unarmed woman) before running down the stairwell and out of the building. These were deliberate, symbolic acts against the criminal justice system, which in my opinion merit the death penalty, so long as it remains a Constitutionally available sentence (but obviously I wasn't on the jury, which voted 9-3).

Posted by: Jim Gormley | Dec 14, 2008 11:06:45 PM

Nope. The fact that one victim happened to be an off-duty federal officer is not enough reason to "make a federal case out of it." I don't know if it's legally permissible, but I think it would be unwise policy. Federal criminal prosecution should be reserved for genuinely federal crimes (treason, counterfeiting, smuggling across the national border...).

To prevent miscarriages of justice such as this in the future, Georgia should repeal its single-juror veto law. Either it should require the jury to be unanimous one way or the other, as California does, or allow a nonunanimous jury to make a recommendation to the judge, as Florida does.

Kent, much has been written about the elasticity and expansiveness of Federal criminal jurisdiction, even after the Lopez (arson of a residence) Supreme Court decision. While I agree that the Feds stick their noses in too many situations, the fact of the matter is that in Brian Nichols' case, there would be jurisdiction under 18 U.S.C. section 2119, the Federal armed car-jacking statute, since all vehicles have been shipped in intetrstate commerce. Section 2113(3) provides for the death penalty when death results from the car-jacking. Thus, a Federal prosecution of Nichols would have nothing to do with the fact that the victim was an off-duty Federal law enforcement (I.C.E.) agent. It would arise from the fact that the car Brian Nichols stole from him had been shipped in interstate commerce to Georgia!

Posted by: Jim Gormley | Dec 15, 2008 12:09:57 AM

Obviously killing a judge on the bench is a grave challenge to the system of laws. Agreed, there is much symbolic value to this case. That includes, however, the unmistakable symbolism of the verdict: that our system, at least sometimes, values due process and mercy over retribution.

A federal indictment, even if legally justifiable because cars are in interstate commerce or because of the accident that one victim was an off-duty federal officer, would symbolize that our government(s) value retribution above all else. As noted above, such action would be particularly disconcerting in a case where a State jury has already rejected the ultimate penalty for offenses directed squarely against the State. Just because Article III federal officials have said that successive prosecutions are not automatically barred under the double jeapardy clause does not mean that Article II officials should not, in discharging their own duties, give serious consideration to the constitutional values embodied by that clause. Put another way, the courts decide only the outer reaches of what is permissble under double jeopardy, but the underlying principles of double jeopardy should affect the use of discretion in other cases.

Posted by: Observer | Dec 15, 2008 11:13:52 AM

Jim, I do not question that a legally sufficient federal hook can be found given the expansive federal statutes and the Supreme Court's post-1937 view of the Commerce Clause. However, I believe that as a matter of prosecutorial discretion, USDoJ should limit its prosecutions to distinctly federal crimes and leave local crimes to the states.

It doesn't seem like the victim just "happened" to be a federal officer. According to this very article: "There was testimony at Nichols’ trial that indicated Wilhelm identified himself as a federal officer before he was shot and killed by Nichols." Presumably, Wilhelm identified himself as a federal officer so he could arrest Nichols, and Nichols killed him as a result, which qualifies for prosecution under 18 usc 1114. However, given that the state has already prosecuted Nichols & he's going to spend the rest of his life in jail, I don't think the federal interest in a death sentence is significant enough to warrant a new prosecution.

Posted by: d | Dec 15, 2008 12:33:53 PM

dm, perhaps you didn't notice my first post. Also, the word is "rein" not "reign".

I'll repeat: it's just not worth it here. Prosecutoral resources are scarce, and this guy is going to prison for the rest of his life.

Nichols deserves the death penalty for his crimes, and to the extent the jurors who held out against it lied to get on the jury, they are evil people who basically urinated on the graves of the victims and stuck a finger in their families' eyes.

Posted by: federalist | Dec 15, 2008 4:15:25 PM

Brian Nichols is not a street thug from the ghetto. To add a twisting of the knife to the symbolism of his crimes and case, his college degree is in "criminal justice"!

Posted by: Jim Gormley | Dec 15, 2008 7:11:01 PM

The state had its day in court-- or days. Respect the jury and the jury system.

Posted by: mpb | Dec 16, 2008 10:02:58 PM

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